Allowed

K Noorulla v. The State of Andhra Pradesh

Andhra Pradesh HC9 Dec 2024WP/2867/2021

Case brief

AI extract

What is this about?

The High Court allowed the writ petition seeking back wages for the petitioner, a former APSRTC employee removed from service. The Court relied on Deepali Gundu Surwase's case, noting that when removal is unjustified, full back wages are due, directing payment for suspension and removal periods.

What did the court decide?

Full back wages for the periods of suspension and removal, along with interest at 6% p.a., to be paid within four months.

K Noorulla Vs The State of Andhra… — Pension and Retirement Benefits | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI (Special Original Jurisdiction)

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TUESDAY, THE TENTH DAY OF DECEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HON’BLE DR JUSTICE K. MANMADHA RAO

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WRIT PETITION NO: 2867 OF 2021

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Between:

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K. Noorulla, S/o. Late K. Mahaboob Sab, Aged 60 years, R/o. D.No.8/763, Marepalli, Colony, Ananthapur District.

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...PETITIONER

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AND

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The State of Andhra Pradesh, represented by its Principal Secretary Labor Department, Secretariat Buildings, Velagapudi, Amaravathi, Guntur District.

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The Andhra Pradesh State Road Transport Corporation (APSRTC), Represented by its Managing Director, Vijayawada.

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The Depot Manager, APSRTC, Rayadurg Depot, Anathapuram.

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The Industrial Tribunal Cum Labor Court, Anathapuram, Represented by its Presiding Officer.

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...RESPONDENTS

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a writ, order or direction more particularly one in the nature of writ of Certiorari, calling for the records relating to the impugned Award made in I.D. No. 125/2015, dated 19.06.2019, on^{thefileofthe4'^} respondent, notified in G.O.Rt. No. 412, Labour Employment Training and Factories (OP) Department, dated 06.09.2019 and set aside the same, so far the denying back wages to the petitioner, for the period of suspension and removal, consequently direct the respondents to pay the back wages for the period of suspension i.e. from 30.01.2015 to 01.06.2015 and further

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to award back wages for the period of removal from service i.e. from 01.06.2015 to till date of retirement, on attaining age of superannuation i.e. 30.06.2018, along with interest at 18 per annum, in the interest of justice and pass

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lA NO: 1 OF 2021

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the writ petition, the High Court may be pleased to grant interim directions directing the respondents to consider case of petitioner for retiral benefits, treating petitioner as in service extending benefit on par with one M.Gopinath, co-culprit who was reinstated as per Lok Adalat Award dated 01. 7.2015, pending disposal of the present writ petition.

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Counsel for the Petitioner: SRI G. V. SHIVAJI

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Counsel for the Respondent Nos.1 & 4 : GP FOR LABOUR

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Copjnsel for the Respondent Nos.2 & 3 : SRI K. VISWANATHAM (SC FOR APSRTC)

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The Court made the following: ORDER

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APHC010041392021

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3310] (Special Original Jurisdiction)

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TUESDAY ,THE TENTH DAY OF DECEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE DR JUSTICE K MANMADHA RAO

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WRIT PETITION NO: 2867/2021

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Between;

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K Noorulla ...PETITIONER

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AND

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The State Of Andhra Pradesh and Others ...RESPONDENT(S) Counsel for the Petitioner:

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1.G VSHIVAJI Counsel for the Respondent(S);

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N SRIHARI ( SC FOR APSRTC ) 2. K VISWANATHAM (SC FOR APSRTC)

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The Court made the following:

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ORDER:

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This Writ Petition is filed under Article 226 of the^{ConstitutionofIndia,}

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seeking the following relief:

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“ to issue a writ order or direction more particularly^{oneinthenatureof} writ of Certiorari calling for the records relating^{totheimpugnedAwardmade} in I D No 125/2015 dated 19.06.2019 on the file of the 4th respondent notified in G.O.Rt.No.412 Labour Employment Training and Factories^{OPDepartment,} dated 06.09.2019 and set aside the same so far the denying back wages to the petitioner for the period of suspension and removal^{consequentlydirectthe} respondents to pay the back wages for the period of^suspension i e from 30.01.2015 to 01.06.2015 and further to award back wages for the period of

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removal from service i.e., from 01.06.2015 to till date of retirement on attaining age of superannuation i e 30 06 2018 along with interest^at18per annum^inthe interest of justice and pass..."

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The facts of the case are that the petitioner herein was initially appointed as temporary driver on contract basis in the year 1986, subsequently regularized w.e.f. 01.07.1987 and later promoted as controller in the month of November 2012. While the Petitioner was working under the 3 rd Respondent, on 02.01.2015, a driver namely M.Gopinath was to report for duty in the morning, but as he did not turn up, the Petitioner being controller. could not allot him duty, and at 1.00pm, while the Petitioner relieved from duty and going home, the said driver namely M.Gopinath, came near^tohim,atthe incoming gate of department, in a drunken condition and started confronting the Petitioner, why the Petitioner has not allotted him for duty. While so, the security Head Constable, Rayadurg has Submitted his report that the Petitioner^ and the said driver M. Gopinath assaulted on each other and sustained blood injuries, as both of them belongs to different unions, vide report dt. 02-01-2015. Thereafter, Deputy Superintendent conducted preliminary enquiry and submitted report that the Petitioner^{andthesaiddriver} M. Gopinth, assaulted on each other and tarnished the image of the Corporation in public. Based on the above reports, the 3'"'^ Respondent issued Charge Sheet to the Petitioner vide Case No. Ml/25 (1)/15-RDG dated 30-01-2015, framing 2 charges and directed to submit written explanation to the Charge Sheet within 7 days from the date of receipt of this Charge Sheet. It is stated that charge 1 and charge 2 are based on^{thesameincidentand}

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same facts, therefore levying 2 charges is illegal and arbitrary. Simultaneously suspension order was issued by the 3rd Respondent vide case No. M1/25(1)/15-RDG dt. 30-01- 2015. Therefore, the Enquiry Officer proposed to impose the penalty of Removal from services of the Corporation besides treating the suspension period as NOT ON DUTY for the purpose of leave, wages and increments. In pursuance of the Enquiry report, the 3 rd respondent issued Show cause notice for removal from service vide No.M1/25(01) 2015-RDG, dated 20.05.2015. Even though the petitioner submitted his explanation, without considering the same, the respondents issued final orders of removal vide proceedings dated 01.06.2015. Aggrieved by the same, the petitioner preferred I.D No. 125/2015 on the file of 4 th respondent and the Tribunal has passed Award setting^{asidetheorderof} removal from service, but denying back wages for the period of suspension and removal. Questioning the same, the preset writ petition came to be filed.

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The counter affidavit has been filed by the respondents^No.2and3 denying ail the allegations made in the petition. It is further stated that M. Gopinath, E.577957 driver of Rayadurg depot was issued with charge sheet and placed under suspension basing on the report of the security Head Constable and Dy.Supdt(TP)/RDG and complaint by Sri K.Noorulla, E 402116 Controller of Rayadurg Depot, and also called for the Explanation to the charge sheet. He has acknowledged the charge sheet^and submitted his explanation. It was not convincing and the case was entrusted to the Asst.Manager(T)/(Enq)/ATP. The enquiry officer conducted the detailed

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enquiry duly observing the Principle of Natural justice and submitted his report that the charges framed against Sri.M.Gopinath, E.577957, Driver was proved beyond any reasonable doubt and that the enquiry report^was served to Sri.M.Gopinath, E.577957, Driver and called for objections. He has acknowledged and submitted objections on enquiry report. It was observed that there are no points for consideration. Further issued Show cause Notice of Removal, dt. 20.05.2015 and called upon to show cause as to why the proposed punishment of removal from service should not imposed on him within seven days from the date of receipt of Show cause Notice of Removal. Sri.M.Gopinath, E.577957, Driver has acknowledged the Show cause notice of Removal but failed to submit his explanation to the Show cause Notice of Removal within the stipulated period which reveals that he has no explanation to offer and admitted the proposed penalty of removal from service. It is stated that, after giving careful consideration to the entire evidences available on record together with the circumstances of the case, the final conclusion that there is no need to modify the proposed punishment in the Show cause notice of removal. Accordingly Sri.M.Gopinath, E.577957, Driver of Rayadurg depot is removed from the services of the Corporation w.e.f 01.06.2015 besides treating the suspension period as NOT ON DUTY for the purpose of Leave, wages and increments. Further Sri.M.Gopinath, Driver has preferred an appeal to Dy.CTM/ATP against the proceedings of DM/RDG. TheDy.CTM/ATP has REJECTED the appeal as the action taken by the Depot Manager, Rayadurg is quite Justified and appropriate. Further he preferred

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Review petition to the Regional Manager, Anantapur. The Regional Manager, Anantapur has considered the review petition and after verifying the records it was observed that that the petitioner has appointed for the year 2010 and performed his duties perfectly and it was first case in the service and also observed his attendance was satisfactorily and therefore the petitioner was reinstated into the service as measurement punishment of his annual increment deferred for a period of 02 years with cumulative^{effectandalsothe} suspension and removal period treated as NOT ON DUTY. Hence, it is prayed to dismiss the Writ Petition as it is devoid^ofmerits.

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Heard Sri G.V.Shivaji, learned counsel appearing for the petitioner and Sri Viswanadham, learned Standing Counsel for APSRTC appearing for the respondents.

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On hearing, learned counsel for the petitioner while reiterating the averments made in the petition submits that the Labour Court ought to have seen that the case between the petitioner and the said driver M.Gopinath was ended in a compromise before the National Lok Adalat^on01.07.2015 at Mandal Legal Services Committee, Rayadurg. He submits^{thattheLabour} Court also ought to have seen that report dated 2.01.2015 submitted by the Security Head Constable, and the preliminary enquiry report conducted by the Deputy Superintendent (T)/RDG dated 27.01.2015 and the enquiry report submitted by the Enquiry officer dated 28.04.2015 wherein they stated that the petitioner and the driver assaulted on each other and sustained blood injuries to both of them and admitted in the hospital duly lodging police complaint on

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each other. Therefore the petitioner alone cannot be blamed for the entire incident and imposed with major punishment of removal from service, while imposing lesser punishment to the said driver. He further submits that the Labour Court ought to have awarded back wages also, as the petitioner was put to loss of regular salary for 3 years suspension i..e, from 30.01.2015 to till date of removal of service i.e., 01.06.2015 and further no salaries from 01.06.2015 to till date of attaining age of superannuation i.e., 30.06.2018.

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To support his contentions, learned counsel for the petitioner has relied upon a decision of Hon’ble Supreme Court reported in Deepali Gundu Surwase Versus Kranti Junior Adhyapak Mahavidyaiaya (D.Ed) and others\ wherein the Apex Court held that:

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Rules 33 (1) to (4), 34(1), (2) and 35, which have bearing on the decision of this appeal read as under:

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“33. Procedure for inflicting major penalties.

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(1) If an employee is alleged to be guilty of any of the grounds specified in sub-rule (5) of rule 28 and if there is reason to believe that in the event of the guilt being proved against him, he is likely to be reduced in rank or removed from service, the Management shall first decide whether to hold an inquiry and also to place the employees under suspension and if it decides to suspend the employee. It shall authorise the Chief Executive Officer to do so after obtaining the permission of the Education Officer or, in the case of the Junior College of Educational and Technical High Schools, of the Deputy^Director.

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Suspension shall not be ordered unless there is a prima facie case for his removal or there is reason to believe that his continuance in active service is likely to cause embarrassment or to hamper the investigation of the case. If the Management decides to suspend the employee, such employee shall, subject to the provisions of sub-rule (5) stand suspended with effect from the date of such orders. (2) If the employee tenders resignation while under suspension and during the pendency of the inquiry such resignation shall not be accepted. (3) An employee under suspension shall not accept any private employment.

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(4) The employee under suspension shall not leave the headquarters during the period of suspension without the prior approval of the Chief Executive Officer. If such

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^ (2013) 10 Supreme Court Cases 324

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(

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employee is the Head and also the Chief Executive Officer, he shall obtain the necessary prior approval of the President.

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Payment of subsistence allo\wance.

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(1) (a) A subsistence allowance at an amount equal to the leave salary which the employee would have drawn if he had been on leave on half pay and in addition, Dearness allowance based on such leave salary shall be payable to the employee under suspension, (b) Where the period of suspension exceeds 4 months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first 4 months as follows, namely

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(i) The amount of subsistence allowance may be increased by a suitable amount not exceeding 50 per cent of the subsistence allowance admissible during the period of first 4 months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons, to be recorded in writing, not directly attributable to the employee.

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(ii) The amount of subsistence allowance may be reduced by a suitable amount, not exceeding 50 per cent of the subsistence allowance admissible during the period of the first 4 months, if in the opinion of the said authority the period of suspension has been prolonged due to reasons, to be recorded in writing directly attributable to the employee.

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(iii) The rate of Dearness allov,/ance shall be based on the increased or on the Decreased amount of subsistence allowance, as the case may be, admissible under sub clauses (i) and (ii).

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(2) Other compensatory allowances, if any, of which the employee was in receipt on the date of suspension shall also be payable to the employee under suspension to such extent and subject to such conditions as the authority suspending the employee may direct:

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Provided that the employee shall not be entitled to the compensatory allowances unless the said authority is satisfied that the employee continues to meet the expenditure for which such allowances are granted:

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Provided further that, when an employee is convicted by a competent court and sentenced to imprisonment, the subsistence allowance^{shallbereducedtoanominalamount} of rupee one per month with effect from the date of^{suchconvictionandheshallcontinueto} draw the same till the date, of his removal or reinstatement by the competent authority Provided also that, if an employee is acquitted by the appellate court and no further appeal or a revision application to a higher court is preferred and pending, he shall draw the subsistence allowance at the normal rate from the date of acquittal by the appellate court till the termination of the inquiry if any, initiated under^theserules

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Provided also that, in cases falling under sub-rules (1) and (2) above, where the management refuses to pay or fails to start and continue payment of subsistence allowance and other compensatory allowances, if any, to an employee under suspension, payment of the same shall be made by the Education Officer or Deputy Director, as the case may be, who shall deduct an equal amount from the non-salary grant that may be due and payable or may become due and payable to the school.

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Conditions of suspension.

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(1) In cases where the Management desires to suspend an employee, he shall be suspended only with the prior approval of the appropriate authority mentioned in rule 33.

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(2) The period of suspension shall not exceed four months^exceptwith the prior permission of such appropriate authority.

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(3) In case where the employee is suspended with prior approval he shall be paid subsistence allowance under the scheme of payment through Co-operative Banks for a period of four months only and thereafter, the payment shall be made by the Management concerned. (4) In case where the employee is suspended by the Management without obtaining prior approval of the appropriate authority as aforesaid, the payment of subsistence allowance even during the first four months of suspension and for further period thereafter till the completion of inquiry shall be made by the Management^itself.

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(5) The subsistence allowance shall not be withheld except in cases of breach of provisions of sub-rules (3) or (4) of rule

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The word “reinstatement'’ has not been defined in the Act and the Rules. As per[:; Shorter Oxford English Dictionary, Vol.ll, 3rd Edition, the word “reinstate” means to reinstall or re-establish (a person or thing in a place, station, condition, etc.); to restore to its proper or original state; to reinstate afresh and the word “reinstatement” means the action of reinstating; re-establishment. As per Law Lexicon, 2nd Edition, the word “reinstate” means to reinstall; to re-establish; to place again in a former state, condition or office; to restore to a state' or position from which the object or person had been removed and the word “reinstatement” means establishing in former condition, position or authority (as) reinstatement of a deposed prince. As per Merriam Webster Dictionary, the word “reinstate” means to place again (as in possession or in a former position), to restore to a previous effective state. As per Black's Law Dictionary, 6th Edition, “reinstatement” means ‘to reinstall, to re- establish, to place again in a former state, condition, or office? To restore to a state or position from which the object or person had been removed.’

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The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is .otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter’s source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice.

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Learned counsel for the petitioner while relying upon^theabove decision, submits that, when once the order of removal is found to be illegal or unjustified, the employee would be entitled to for full back wages. In the instant case, the removal of petitioner from service is not only unjustified, but also discriminatory. Therefore, the petitioner is entitled to be granted with full back wages.

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Per contra, learned Standing Counsel while reiterating^thecontents made in the counter affidavit, denied all the contents urged by the learned counsel for the petitioner and opposed for allowing the writ petition. Therefore, learned Standing counsel prayed to dismiss^thesame.

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On a perusal of the impugned Award passed in I.D^No.125of2015 wherein, this Court observed that, in the enquiry, it was clear that M. Gopinath was aggressive in his nature and he had also contributed his part in the assault against the petitioner. It is also observed that, both the petitioner and M.Gopinath are equally responsible for the criminal assault against each other. Further, M.Gopinath is not supposed to question the petitioner about marking him as absent on a particular day in an informal way without following due procedure and he was not expected to pick up quarrel with the petitioner who was Controller at that time. Similarly the petitioner^{shouldnothavelost} temper and indulged in the criminal assault on M.Gopinath. While observing the same and after careful examination of the entire material on record, the Labour Court came to conclusion and passed Award setting^{asidetheorder} passed by the respondent and consequently a penalty^{ofdefermentoftwo} increments with cumulative effect was imposed and also^{directedtotreatthe} suspension and removal period as continuity of service^with all retirement benefits as petitioner stated to have retired on 30.06.2018^{butwithoutback} wages and attendant benefits for the said period.

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It is the contention of the learned counsel for the petitioner that the case between the petitioner and M.Gopinath was ended in a compromise

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before the National Lok Adalat and also stated that the Regional Manager, Ananthapur, reinstated the driver M.Gopinath, into service with penalty of deferment of two increments with cumulative effect treating the suspension period as Not on duty. In the instant case, without assigned any reasons for rejecting the back wages shown by the respondent corporation against the petitioner has been proved, the punishment against the petitioner would be unjustified, for which, the petitioner would be entitled for back wages.

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Payment of back wages having a discretionary element^involvedin it has to be dealt with, in the facts and circumstances of each case and no straight-jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety.

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In the present case, the labour court found that the charges against the petitioner in respect of misconduct were proved. It however, felt that the punishment of removal from service was not warranted, and therefore imposed a penalty of deferment of two increments with cumulative^effect.

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Having regard to the facts and circumstances of the case and by following the decision of Deepali Gundu’s case (supra),^{thisCourtisinclined} to allow the present writ petition.

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Accordingly, the Writ Petition is allowed setting aside the impugned order and the order passed by the Tribunal is restored. The respondent Corporation shall pay full back wages to the petitioner within four (04) months from the date of receipt of a copy of this order, failing which, it shall have to

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.«r

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pay interest at the rate of 6% p.a., from the date of petitioner’s suspension till

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the date of actual reinstatement. There shall be no order as to costs.

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As a sequel, interlocutory applications, if any pending, shall stand

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closed.

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//TRUE COPY//

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Sd/- K.J.RAJA BABU ASSISTANT REGISTRAR

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To,

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SECTION OFFICER

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The Principal Secretary Labor Department, State^{ofAndhraPradesh} Secretariat Buildings, Velagapudi, Amaravathi, Guntur^District.

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The Andhra Pradesh State Road Transport Corporation (APSRTC), Represented by its Managing Director, Vijayawada.

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The Depot Manager, APSRTC, Rayadurg Depot, Anathapuram.

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The Presiding Officer, Industrial Tribunal Cum Labor^Court, Anathapuram.

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1. One CC to Sri G. V. Shivaji, Advocate [OPUC] / 6. One CC to Sri K. Viswanatham, (SC for APSRTC) [OPUCT]

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Three C.D. Copies.

Cnr

HIGH COURT

DATED:10/12/2024

ORDER

WP.No.2867 of 2021

0ro^>
?4 /4N 2r:
* Current Section 5?ca.

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ALLOWING THE W.P. WITHOUT COSTS

K Noorulla v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

K Noorulla v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

What the court decided

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